Case Report

Kimathi & Ors v Foreign & Commonwealth Office [2017] EWHC 938 (QB)

Niazi Fetto appeared as a member of the FCO’s counsel team responding to the Claimants’ application to amend the Generic Particulars of Claim to allege false imprisonment.

The claim relates to the alleged unlawful detention and abuse of 41,000 ‘Mau Mau’ members and their relatives in Kenya under Colonial rule during the 1950s.

The Claimants had originally pleaded a generic claim of false imprisonment but then removed it by amendment in March 2016. Their application to reinstate it was lodged in February 2017. In the intervening period the Defendant had conducted extensive archival searches for documentary evidence and the Test Claimants had given oral evidence.

Stewart J refused the application, holding among other things that there was a vast difference between a ‘background’ claim of detention in relation to pleaded claims of assault, battery and negligence, and a pleaded case of false imprisonment. The Defendant had conducted its defence of the claim since March 2016, including cross-examining the Test Claimants, on the former not the latter basis. It would be disproportionate and excessively disruptive to permit the claim of false imprisonment to be reinstated.